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Defamation Cases: Why an Expert Witness is Vital

I have served as an expert witness for both plaintiffs and defendants in a wide variety of defamation cases throughout the U.S. (e.g. from the East and Southeast across the South and up through the Southwest and into the Northwest). Despite the location and the type/nature of the defamation involved, there was one constant – the vital need for an expert witness for both the plaintiff and defendant.

Unfortunately, though, over the years I have come across defamation cases where an attorney chose not to have an expert witness. Sometimes, it was a monetary decision and there were, sadly, no funds available. However, in too many instances, it appeared that the attorney felt that he/she could address the defamation allegation (for or against) adequately in the opening statement and closing argument. If funds were available, this would be a classic case of being “pennywise and pound foolish.”

Even more egregious was a Daubert Hearing in which the defendant’s counsel made the argument that the expert witness should not testify because he could not offer any information or insight substantive to “educate” the jury and therefore was not needed. Worse yet, the judge agreed. In reality, without an expert witness, what would happen is that plaintiff’s attorney would tell the jurors that his client was defamed and opposing counsel would say he wasn’t and that this “he said, she said” approach would be all the jury has to go on to make a decision.

Hogwash. It doesn’t matter whether an attorney is representing the plaintiff or defendant a case has to be made either way. There are two sides to every dispute. I am currently representing the plaintiff in a case in North Carolina and the defendant in the state of Washington, both defamation cases. Both of those I believe my client will prevail. However, I believe there will be opposing expert witnesses – which is as it should be.

Very few people that serve on juries – whether they are housewives, mechanics, sales clerks, etc. or financial planners, architects, rocket scientists, etc. have the knowledge, background or understanding of how defamation (or negative communications) works. They understand that it is alleged that one person/entity communicated something bad about another that was untrue, derogatory or disparaging, thus harmful. However, they aren’t trained communications professionals that can comprehend such factors as:

  • The principles of negative communications

  • The many methods or channels of how the information would be spread

  • The time factor for that information to be exposed and accessible

  • The process, in which the information could change, be distorted or embellished.

  • Understanding human nature and psychology in terms of how such information is absorbed and interpreted.

  • Short and long term negative consequences and impact on its target.

  • Options available for the target to take to counter the information and damage and what is involved.

  • Evaluating whether the charges have merit based on existing law (e.g. New York Times v. Sullivan)

It is imperative and critical that the jurors (or even judge, whether jury trial or not) understand these factors. It’s not enough for the plaintiff’s attorney to say “he did him wrong” and we want “x” dollars in damages without thoroughly educating the jury to these factors and applying them to the target’s circumstances and case. Nor is it enough for defendant’s counsel tosay “they have no case and you need to acquit” without giving a rationale for why the allegations don’t apply based on a thorough knowledge of the principles of defamation.

Both of these require the counsel and services of an expert witness who has an extensive background and significant expertise in specific areas of the communications field, particularly those that relates to image, reputation, public perception and opinion.

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